What place does the law have in what happens privately between consenting adults? Photo: Getty
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Is the government finally ready to legalise BDSM?

The Ministry of Justice has begun a review process into a law that is widely recognised as outdated, archaic in language, and Victorian in its approach. But do they really want to change anything?

The short answer seems to be: not if it can help it. Unfortunately, for those still handcuffed to the inconsistent muddle that passes for law in this area, the Ministry of Justice has just kicked off a process that could result in a spectacular own goal sometime in 2015.

They have officially asked the Law Commission, a “statutory independent body” of some influence when it comes to law-making, to review the law on offences against the person.

In the spotlight is the Offences Against the Person Act 1861 (OAPA), which they admit is widely recognised as outdated, archaic in language, and Victorian in its approach of listing separate offences for unique scenarios. Do we really, they ask, need a specific offence of “impeding a person endeavouring to save himself from a shipwreck”?

Of course, what they don’t mention is the central role this Act has played in shaping the legal landscape in respect of BDSM. For it was under the OAPA that the landmark Spanner case was prosecuted in the 1990s: and despite contrary rulings, it is this verdict that continues to dictate the limits to consensual sex.

Incredible as it may seem to those who have grown up post-Spanner, there was a once-upon-a-time golden age when the prevailing assumption was that pain, inflicted consensually and in pursuit of mutually satisfying erotic outcomes was permissible. That was not an unreasonable point of view. After all, you could – you may still – beat an opponent senseless in a boxing ring and, providing all is done in accordance with the rules, and consensually, there is no problem.

Why should a beating of a sexual nature be any different?

This changed when a police raid in 1987 found a videotape of a number of men involved in some fairly heavy sado-masochist activity, including beatings, genital abrasions and lacerations. The police were shocked: was this, perhaps, the smoking gun; the first definitive instance of a snuff movie (a film in which one or more of the participants are intentionally murdered on camera)? After much investigation, the truth turned out to be rather different.

The on-camera action was consensual. A form of erotic “play”! A more enlightened police force might have quietly tiptoed away. But this was Manchester, then the beat of committed and upright Christian Chief Constable James Anderton: a man who had already established a reputation for clamping down on gay clubs on his patch. The police had already spent a small fortune – estimated to be close to $4m – on their “Operation Spanner”. There was no way someone wasn’t going to pay.

And that is exactly what 16 gay men did when, in December 1990, the courts handed down sentences ranging from fines to up to four and a half years in prison apiece. Some later had their sentences reduced on appeal: but this was a one-off discount, based on the fact that for the most part, participants were genuinely unaware that their actions were illegal. We have been warned, and should expect little leniency in future.

Many of those convicted were sent down on the basis of their own words. So sure were they that they had committed no offence that they freely incriminated themselves, providing the police with the evidence that would later be used to convict them.

The case became something of a cause celebre in both BDSM and LGBT circles, with failed appeals before the House of Lords (1992), and the European Court of Human Rights (1997). In fact, the 1992 verdict was a “damn close-run thing”, with the views of police and authorities endorsed by just three of the five Lords sitting. One vote the other way, and the recent history of UK sexuality might have been a very different thing indeed.

There have, too, been apparently inconsistent rulings since. Most notable was the case of R v Wilson, in which it was ruled that consensual branding, between husband and wife, was not unlawful. The judge ruled that a husband who had branded his wife with a hot knife while the two were consensually re-enacting a scene from The Story of O was not guilty of an offence.

Overturning an original conviction, the Court of Appeal stated: “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgment, a proper matter for criminal investigation, let alone criminal prosecution”.

These remarks, while outwardly positive for the BDSM community, have done little to dispel the view that the law is not even-handed between gay and straight in sexual matters.

Besides, the Spanner standard – that BDSM is lawful so long as any injury, pain or mark is no more than “trifling and transitory” – is what tends to be applied by police and courts. This echoes the view of Lord Templeman, one of the triumvirate of Lords who delivered the 3-2 thumbs up to the Spanner convictions in 1992, that “pleasure derived from the infliction of pain is an evil thing”.

Or as the Law Commission put it a consultation, Consent in the Criminal Law, in 1995: the law was now “unprincipled” and thoroughly inconsistent. Individuals might happily and lawfully consent to an assault for medical reasons (surgery) or on the sporting field. They could consent to piercing, tattooing and presumably, branding.

They might even, following 19th-century precedent which treated the practice of flagellation in the Christian church as a lawful activity, consent to the infliction of pain for religious reasons. All of the above, plus, more recently, television that makes a show of ritualised celebrity humiliation is lawful. But only so long as sex is not involved.

This approach, they argued, was not without its costs: whole communities were alienated from the police, with many perennially suspicious that the authorities made disproportionate use of the law on BDSM to crack down on gay clubs and events.

The outcome, though, as with so many other researched and evidence-based consultations, was less than zero.

An incoming Labour government was not interested in liberalising the law around sexual consent. The prevailing ethos may be gauged from the deliberations of the Sexual Offences Review Team (SORT), which was established by the Home Office to carry out a much-needed review of sexual offences shortly after. It was SORT that laid the groundwork for the Sexual Offences Act 2003, and which argued for important reforms of the law on rape: for instance, substituting “reasonable belief in consent” as the test for the previous troubling “honest belief”. 

Although the focus of the SORT was on consent, it was much more concerned with negotiating the individual’s right to withhold consent than endorsing the suspiciously liberal views of the Law Commission. Contemplating necrophilia, for instance, they conceded that there was no evidence it ever happened or was even a problem. But discovering there was not actually a law against it, and considering the very idea repugnant, they proposed one.

So the law on BDSM stuck: inconsistent, outdated, archaic. If government has its way, it seems likely that that inconsistency will stay too. The question is: will this consultation prove a somewhat larger can of worms than they expect?

The last consultation attracted more public interest than almost any other before or since. Campaigning organisation, Spanner, which mobilised much public support on this issue twenty years back is even now preparing to rumble. Again.

The issue is live once more. With political uncertainty on the cards for some while to come, it is possible that the legal establishment is about to receive a (non-consensual) caning.

Jane Fae is a feminist writer. She tweets as @JaneFae.

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After a year of chaos, MPs from all parties are trying to stop an extreme Brexit

The Greens are calling for a cross-party commission on Brexit.

One year ago today, I stood on Westminster Bridge as the sun rose over a changed country. By a narrow margin, on an unexpectedly high turnout, a majority of people in Britain had chosen to leave the EU. It wasn’t easy for those of us on the losing side – especially after such scaremongering from the leaders of the Leave campaign – but 23 June 2016 showed the power of a voting opportunity where every vote counted.

A year on from the vote, and the process is in chaos. Perhaps we shouldn’t be surprised. The Leave campaign deliberately never spelled out any detailed plan for Brexit, and senior figures fought internal battles over which model they preferred. One minute Britain would be like Norway, then we’d be like Canada – and then we’d be unique. After the vote Theresa May promised us a "Red, White and Blue Brexit" – and then her ministers kept threatening the EU with walking away with no deal at all which, in fairness, would be unique(ly) reckless. 

We now have our future being negotiated by a government who have just had their majority wiped out. More than half of voters opted for progressive parties at the last election – yet the people representing us in Brussels are the right-wing hardliners David Davis, Liam Fox and Boris Johnson.

Despite widespread opposition, the government has steadfastly refused to unilaterally guarantee EU citizens their rights. This week it has shown its disregard for the environment as it published a Queen’s Speech with no specific plans for environmental protection in the Brexit process either. 

Amid such chaos there is, however, a glimmer of hope. MPs from all parties are working together to stop an extreme Brexit. Labour’s position seems to be softening, and it looks likely that the Scottish Parliament will have a say on the final deal too. The Democratic Unionist Party is regressive in many ways, but there’s a good chance that the government relying on it will soften Brexit for Northern Ireland, at least because of the DUP's insistence on keeping the border with Ireland open. My amendments to the Queen’s speech to give full rights to EU nationals and create an Environmental Protection Act have cross-party support.

With such political instability here at home – and a growing sense among the public that people deserve a final say on any deal - it seems that everything is up for grabs. The government has no mandate for pushing ahead with an extreme Brexit. As the democratic reformers Unlock Democracy said in a recent report “The failure of any party to gain a majority in the recent election has made the need for an inclusive, consensus based working even more imperative.” The referendum should have been the start of a democratic process, not the end of one.

That’s why Greens are calling for a cross-party commission on Brexit, in order to ensure that voices from across the political spectrum are heard in the process. And it’s why we continue to push for a ratification referendum on the final deal negotiated by the government - we want the whole country to have the last word on this, not just the 650 MPs elected to the Parliament via an extremely unrepresentative electoral system.

No one predicted what would happen over the last year. From the referendum, to Theresa May’s disastrous leadership and a progressive majority at a general election. And no one knows exactly what will happen next. But what’s clear is that people across this country should be at the centre of the coming debate over our future – it can’t be stitched up behind closed doors by ministers without a mandate.

Caroline Lucas is the MP for Brighton Pavilion.

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